Harbert v. Priebe, C 06 1145 WHA (EDL).

• Decision Date: 18 December 2006
• Docket Number: No. C 06 1145 WHA (EDL).,C 06 1145 WHA (EDL).
• Citation: 466 F.Supp.2d 1214
• Court: U.S. District Court — Northern District of California
• Parties: Lee D. HARBERT, Anne Krajewski-Harbert, Plaintiff, v. Robert-PRIEBE, Mark Ruppenthal, Ed Zeltzer, Town of Moraga, Defendant.

Page 1214

466 F.Supp.2d 1214

Lee D. HARBERT, Anne Krajewski-Harbert, Plaintiff, v. Robert-PRIEBE, Mark Ruppenthal, Ed Zeltzer, Town of Moraga, Defendant.

No. C 06 1145 WHA (EDL).

United States District Court, N.D. California.

December 18, 2006.

Herman Franck, Law Offices of Herman Franck, Sacramento, CA, for Plaintiff.

Michael Patrick Clark, Peter Pratt Edrington, Edrington Schirmer & Murphy, Pleasant Hill, CA, for Defendant.

ORDER DENYING PLAINTIFFS' MOTION TO COMPEL COMPLIANCE/OBEDIENCE TO SUBPOENAS

LAPORTE, United States Magistrate Judge.

I. Background

Plaintiff Lee Harbert is the alleged driver in a January 11, 2005 hit-and-run death of a woman in Moraga. The Contra Costa Times published articles about the incident on January 29 and February 11, 2005 which referred to past driving under the influence by Harbert and his wife, co-plaintiff Anne Krajewski Harbert. Lee Harbert was charged on March 8, 2006 with a felony complaint for leaving the scene of an accident with a fatality or permanent serious injury.

Plaintiffs filed this action on February 16, 2006, against three Moraga police officers and the Town of Moraga, alleging federal and state law claims based on allegations that Defendants divulged Plaintiffs' DUI history and other private information to the news media. See, e.g., Compl., Second, Third and Seventh Claims for Relief. On August 25 and September 25, 2006, Plaintiffs served nonparty Contra Costa Times with subpoenas for "documents, investigative notes and electronic files" concerning, the news articles. Franck Decl., Exs. A, B. The Times served an objection to the September 25 subpoena. On October 23, 2006, Plaintiffs filed the present Motion to Compel Compliance/Obedience to Subpoenas.

II. Analysis

A. State Law Immunity

The Times contends that the Court should apply state privilege law here pursuant to Federal Rule of Evidence 501, because six of the ten claims assert state law claims for relief. The Times argues that the California shield law, Evidence Code section 1070, protects against discovery of unpublished information from nonparty journalists. That statute provides that "[a] publisher, editor, reporter or other person connected with or employed upon a newspaper ... cannot be adjudged in contempt by a judicial [or other subpoena-issuing] body." Cal.Code Evid. § 1070(a). However, as the court in Dalitz v. Penthouse Intern., Ltd. explained, "[t]he California `shield law' (Cal. Const., art. I, § 2; Evid.Code, § 1070) provides an immunity from being adjudged in contempt. It does not create an absolute privilege for newspeople. Rather, it additionally provides a conditional or qualified privilege." 168 Cal.App.3d 468, 482, 214 Cal.Rptr. 254 (2 Dist.1985). The Assembly. Committee's comments state' that this provision "provides an immunity from being adjudged in contempt; it does not create a privilege." Cal.Code Evid. § 1070(a), Assembly Comm. on Judiciary cmt. The difference between this immunity from the sanction of contempt and the privilege that the Times wishes to invoke is that "[a] privilege would prohibit all sanctions, not just contempt." New York Times Co. v. Superior Court, 51 Cal.3d 453, 462-463, 273 Cal.Rptr. 98, 796 P.2d 811 (1990).

The shield law leaves intact sanctions other than contempt that are available. Id. It is true that as a practical matter, "[s]ince contempt is generally the only effective remedy against a nonparty witness, the California [shield laws] grant such witnesses virtually absolute protection against compelled disclosure." Id. at 461, 273 Cal.Rptr. 98, 796 P.2d 811, quoting Mitchell v. Superior Court, 37 Cal.3d 268, 274, 208 Cal.Rptr. 152, 690 P.2d 625 (1984) (emphasis added in original). However, the discovering party may pursue monetary sanctions against a nonparty journalist pursuant to section 1992 of the Code of Civil Procedure, which provides as follows: "A person failing to appear pursuant to a subpoena or a court order also forfeits to the party aggrieved the sum of five hundred dollars ($500), and all damages that he or she may sustain by the failure of the person to appear pursuant to the subpoena or court order, which forfeiture and damages may be recovered in a civil action." Cal.Code Civ. Proc. § 1992; New York Times, 51 Cal.3d at 464, 273 Cal.Rptr. 98, 796 P.2d 811.

Thus, if state law were solely applicable here, the California shield law would not necessarily protect the Times completely against disclosing the subpoenaed documents. However, in light of the fact that their case asserts federal claims, the Court applies federal privilege law pursuant to Rule 501. See Agster v. Maricopa Co., 422 F.3d 836,-839 (9th Cir.2005) ("Where there are federal question claims and pendent state law claims present, the federal law of privilege applies."); Fed.R.Evid. 501, Advisory Comm. Notes.

B. Federal privilege law

Shoen v. Shoen, 48 F.3d 412 (9th Cir. 1995) ("Schoen II") sets forth the terms of the qualified privilege for journalists under federal common law:

where information sought is not confidential, a civil litigant is entitled to requested discovery notwithstanding a valid assertion of the journalist's privilege by a nonparty only upon a showing that the requested material is: (1) unavailable despite exhaustion of all reasonable alternative sources; (2) non-cumulative; and (3) clearly relevant to an important issue in the case. We note that there must be a showing of actual relevance; a showing of potential relevance will not suffice.

Schoen II, 48 F.3d at 416. Thus, Shoen II imposes high hurdles against compelling discovery from third party journalists. Plaintiffs failed to surmount these hurdles.

Plaintiffs contend that they exhausted reasonable alternatives simply by propounding interrogatories asking whether Defendants provided information to the press, to which the response was "No." Mot. at 8. Plaintiffs speculate that these interrogatory responses are false, and that instead Defendants provided DMV records to the journalists. Id. at 9. Plaintiffs rely on their expert witness' conjecture that a "news journalist cannot obtain [DMV records], and would have to obtain it from a law enforcement source.... We don't know this for sure, and are trying to figure it out by the requested discovery." Clark Decl., ¶¶ 5, 6 (emphasis added).

Plaintiffs have not taken any depositions or indicated that they have made other efforts to obtain information, and instead rely only on the purported inadequacy of the interrogatory response. As the Ninth Circuit held, merely asking interrogatories does not exhaust reasonable alternatives:

Written interrogatories are rarely, if ever, an adequate substitute for a deposition when the goal is discovery of a witness' recollection of conversations .... Only by examining a witness live can a lawyer use the skills of his trade to plumb the depths of a witness' recollection, using to advantage not only what a witness may have admitted in answering interrogatories, but also any new tidbits that usually come out in the course of answering...